Canadian HR Reporter

N E W S 10 www.hrreporter.com Employers beware: Pandemic no excuse to 'clean house' When it comes to recalling workers laid off during the COVID-19 crisis, employers must be careful so they're not charged with constructive dismissal if they do not fully reinstate workers to their former positions, finds John Dujay Justifying terminations In Quebec, for those workers who are not returned to their former positions, employers must be able to defend the terminations, according to Jeremy Little, an attorney at OLS law firm in Montreal. "It can't just be subjectively done and justified by 'Well, we chose to terminate this position, we have in fact eliminated the position and the exercise stops there.' It really is also important to demonstrate that this was done in good faith, that this hasn't been effectively replaced with another similar position, that there weren't opportunities to put the person in another role, that the employer just chose not to do that and proceeded to just terminate the person." there are new legal considerations for employers. And bringing back workers who were temporarily laid off and reintegrating them into the workforce will present new challenges on a mass scale. Recalling workers For one, employers need to know the rules when it comes to temporary layoffs. In Alberta, for example, the government made changes to the rules during the pandemic that provided more leeway for employers that needed to undertake temporary layoffs, says Kimberley Holland, associate lawyer at Kahane Law Office in Calgary. "There was a change during COVID to our employment standards code that allowed for a larger period of time for a temporary layoff. It used to be 60 days within a 120-day period; the government enacted changes to allow employers to issue temporary layoffs for 120 days." Once that time has lapsed, it's important for employers to bring back workers into their former positions, she says. "When it comes to recalling them, the employment terms would be the same. If there was an actual termination of employment and employers are looking to hire back employees, it will be absolutely critical that they do have the employees sign new agreements — but that would only happen if there was a clear end, there was a termination and they were paid out termination pay and severance pay." It's important to demonstrate that the criteria used in selecting who was terminated was objective, rational and fair and not just completely arbitrary, he says. "These are some of the very important points that employers and HR have to be aware of as regards Quebec termination," he says. "Worst case, you could open yourself up to a claim for reinstatement with back pay and potentially further damages for abusive behaviour. It really is important to be very careful with that." Courts will not look too kindly on employers that try to use the COVID- 19 outbreak as an excuse to trim the number of employees they have in the workforce, says Little. "The big warning I would give to employers and HR would be there is going to be this temptation for some to use COVID as an excuse to clean house and, unfortunately, we are already seeing some cases of people trying to do that: It is not lawful; it is not a justification," he says. "It's important to remember that, if someone is going to make a damage claim for severance, that damage claim is obviously inherently greater, having been terminated in the midst of the health and potential economic crisis CANADA SEES MAJOR DROP IN JOBS "Worst case, you could open yourself up to a claim for reinstatement with back pay and potentially further damages for abusive behaviour." Jeremy Little, OLS 13% Unemployment rate for April 2.5 million Employed people who worked less than half of usual hours 3,005,000 Jobs lost since February -27.7% Drop in total hours worked from February to April THE numbers are astounding. More than three million people have lost their jobs through the COVID-19 pandemic. The unemployment rate reached 13 per cent in April, according to Statistics Canada. At the height of the crisis, nearly half (49 per cent) of Canadian workers said COVID-19 had affected their employment, and half of them had lost their job temporarily (40 per cent) or permanently (11 per cent). Another 18 per cent said that their hours had been reduced, according to a Forum Research survey. With millions of employees laid off or sent home to work remotely, the COVID- 19 pandemic saw human resources managers facing an entirely new and alien landscape. Now, as the economy re-opens, Source: Statistics Canada

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